DC Confidential - David Schoenbrod

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Americans say they trust the federal government.

      In the pages that follow, David Schoenbrod explains how we got here and how we can start to rehabilitate our government so that it once again is of, by, and for the people. Through a series of riveting—and often infuriating—blow-by-blow accounts exposing the ugly reality of today’s deceptive lawmaking process, he shows that the problems in Washington can’t be pinned on one party or one president, but have instead accreted over decades. But DC Confidential is more than a polemic against a discredited, flailing political establishment. It is equal parts diagnosis and prescription, tied together with a penetrating historical and legal analysis that identifies the proximate cause of the structural dysfunction plaguing our federal government: a weak and timid Congress that seeks above all to avoid responsibility for the consequences of harmful laws by, as Professor Schoenbrod explains, “enacting popular policies” that promise big benefits while “shunting [the] hard choices” of lawmaking to an executive branch agency.

      Herein lies the profound insight of Schoenbrod’s superb exploration of the tricks of Washington and the key to fixing what’s broken in the federal government.

      The only way to put the American people back in charge of Washington is to put Congress back in charge of federal lawmaking.

      Restoring the legislative branch’s proper constitutional role and making Congress once again responsible—in the sense of both discharging its constitutional duties and taking responsibility for the consequences—is the reason I came to Washington in 2010. And it’s why I recently joined several colleagues in the House and Senate to launch the Article I Project, a network of reform-oriented lawmakers working together on an agenda of congressional empowerment designed to put elected representatives in Congress—rather than unelected, unaccountable bureaucrats—back in the driver’s seat of federal policy making.

      As Schoenbrod shows, Congress’s habitual abdication of its constitutional duties is a problem years in the making, and fixing it will not be easy. But in a democratic republic like ours, the first step toward government reform is always to educate the people, so that they are empowered to hold their elected representatives accountable for their decisions. That’s exactly what DC Confidential aims to achieve, and it’s why this book should be required reading for anyone who believes it’s still possible to reform our failing public institutions and put the federal government back to work for the American people.

      Mike Lee

      United States Senator, Utah, 2011–Present

       INTRODUCTION

       Rabbits, Hats, and Sleights of Hand

      Illustration by Stephen Fineberg.

      Washington at Work

      You think you know why our government in Washington is broken, but you really don’t. You think it’s broken because politicians curry favor with special interests and activists on the left or the right. There’s something to that belief and it helps explain why our politicians can’t find common ground, but it misses the root cause. A half century ago, elected officials in Congress and the White House figured out a new system for enacting laws and spending programs—one that lets them take the credit for promises of good news while avoiding the blame for producing bad results. With five key tricks, politicians of both parties now avoid accounting to us for what the government actually does to us.

      While most people understand that politicians seem to pull rabbits out of hats, hardly anyone sees the sleights of hand by which they get away with their tricks. Otherwise, their tricks wouldn’t work. DC Confidential exposes the sleights of hand behind the Five Tricks of Washington. Once the sleights of hand are brought to light, we can stop the tricks, fix our broken government, and make Washington work for us once again.

      Congresses and presidents of both parties have used these tricks for so long that they now seem like natural features of Washington’s landscape, but for more than a century and a half they were contrary to the ground rules of government.

      The people who met in Philadelphia in the summer of 1787 to draft a constitution for the United States were not all-knowing, but they did respond sensibly to the challenge of finding a way that a population with clashing interests could get along. They put at the heart of the country’s new government an elected Congress whose members would both represent different constituencies and take personal responsibility for the consequences of their decisions. Personal responsibility to voters was essential because the Declaration of Independence held that governments derive “their just Powers from the Consent of the Governed.” The legislators’ responsibility would spark open debate and so educate both them and their constituents about the consequences of proposed actions. This feedback would sometimes move voters to moderate their demands, but given human nature, there would still be disagreements. Nonetheless, because Congress would resolve the disagreements in the open, legislators would usually be required to balance conflicting interests and voters could generally accept the system as fair. Win some, lose some.

      The circle of repeated demand, feedback, moderation, balancing, decision, and acceptance induced by the responsibility of representatives would tend to foster virtue. This virtuous circle could put the goodness in peoples’ hearts into the heart of government. And so it was that Congress could legislate on such controversial issues as tariffs in the early 1800s and civil rights in the early 1960s.

      Politicians began using the Five Tricks in the later 1960s, an era in which our federal government seemed capable of working wonders. It had gotten the country through the Great Depression, won World War II, invented the atomic bomb, built the interstate highway system, came to preside over the world’s richest economy, and enacted meaningful civil rights legislation. In 1969, it even put humans on the moon. The government had achieved all this without needing the Five Tricks.

      The successes of the government understandably led voters to demand more from it, and these demands understandably led politicians to want to please voters. So Congress and presidents (rightly in my opinion) addressed additional challenges such as pollution and haphazard health care for the poor and elderly, but (tragically in my opinion) began using tricks in writing the statutes.

      The trickery, too, is understandable. Voters did not want to feel the burdens needed to produce the results they demanded from the government. Again wanting to please voters, politicians came to embrace theories, often sincerely, that enabled them to believe that they could deliver the benefits without commensurate burdens, and built such theories into statutes.1 As I will show, however, the theories usually failed to deliver the benefits without burdens, but promising something for nothing, or very little, had become the course of least resistance. The Five Tricks had begun.

      The tricks differ from the spin and deceits with which politicians have always tried to put their actions in the most favorable light. The Five Tricks allow them to act in new ways that shift the blame for unpopular consequences to others:

       • The Money Trick lets current members of Congress get the credit for gratifying the public’s demands for tax cuts, benefit increases, and other spending increases, while shifting the blame for the inevitable tax increases and benefit cuts to their successors in office when the long-term fiscal consequences of these actions require painful adjustments. As a result, Congress has set a course that, unless soon changed, will require draconian tax increases and spending cuts across the entire population.

       • The Debt Guarantee Trick lets current members of Congress get support from the too-big-to-fail banks and other businesses whose profits it increases by guaranteeing their debts, while shifting the blame for the eventual bailouts to their successors in office when the debt guarantees produce fiscal crises. As a result, Congress grants debt guarantees in a way that encourages these businesses to run risks that will lead to fiscal crises, lost retirement

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